Will John Suthers Drag Down Romney's Presidential Hopes?

09/20/2012 01:31 pm ETUpdated
Nov 20, 2012

Among the many reasons Colorado Attorney General John Suthers could drag down Mitt Romney's presidential hopes -- Suthers covets a position running Romney's Department of Justice -- is the loss Suthers sustained in an epic seven-year lawsuit that was both outrageously expensive and ill-advised from the start.

Suthers waged his lawsuit against two Native American tribes, earning him pariah status with the well-funded Native American lobby throughout the country.

A guaranteed loser

Suthers sued the Santee Sioux Tribe of South Dakota and the Miami Tribe of Oklahoma to block the tribe's online loan operations in Colorado - a battle that anyone with even the most basic understanding of the law and longstanding legal precedents could see was a guaranteed loser.

Suthers may have skipped class the day his law professor discussed the federal doctrine of Tribal Immunity, which prevents states from enforcing regulations against congressionally recognized sovereign tribes.

Suthers didn't just lose the case; he and his office got spanked. Officially.

Presiding judge scolds, sanction Suthers

Suthers' team blundered in the case so badly that his lead staffer in the case was ultimately sanctioned and fined $12,500 by the presiding judge for wrongly having one defendant arrested and jailed on a warrant issued by Colorado and executed in Missouri, where Colorado was found to have no authority in the first place.

In the course of the seven year fight, concluded in February, Suthers never sent a lawyer into court that had any experience in tribal law.

Instead, he fielded a team of attorneys specializing in enforcement of civil regulations relating to consumer lending -- the businesses operated by the tribes.

"Rent-a-tribe" slur backfires

Critics even coined a new pejorative phrase accusing the loan company operators of hiding behind tribal immunity in a program they called "rent-a-tribe."

For a time, some reporters and editorial writers swallowed and parroted what Suthers said: that this matter was about consumer protection.

But such simplistic analysis overlooked the vastly larger -- and long settled -- legal issue of the rights of tribes to be free from petty oppression and whimsical enforcement of tribal matters by individual states.

The tribes' side of the battle opened with a salvo that should have ended the entire issue on the spot. More than 3,000 pages of documents were submitted by the tribes, establishing precisely what the law requires with respect to sovereign immunity.

But Suthers' team chose to ignore evidence that the payday lending operations were legally recognized "arms" of the tribes and therefore protected under federal doctrine.

Refuses to return so-called 'pay-to-play' contributions

Of course, paying for seven years of full-out litigation in Denver District Court, Colorado appeals courts and U.S. District Court cost the tribes precious resources that they could ill-afford, especially since both tribes had gone into the online lending business as a source of sorely needed revenue, as casino gambling was not an option for either tribe.

Suthers kept up the case against the tribes even after he accepted more than $10,000 in campaign contributions from non-tribal lenders operating storefront loan shops in Denver and elsewhere -- contributions cited by one Denver watchdog group as smelling like "pay-to-play."

Even after being called out on the contributions, Suthers refused to return the money.

In the end, Denver District Court Judge Morris B. Hoffman ruled that Suthers had no more right to subpoena records from tribal employees than he "could subpoena France."

Suthers makes it an issue for every tribe

This case might never have risen to the status of potentially harming Suthers' post-Colorado ambitions -- and Romney's presidential bid -- if not for the obsessive persistence with which Suthers prosecuted it, putting him on the radar screen of tribal leaders across the country.

Chief John Gamble, head of the Miami Tribe of Oklahoma and one of the two tribes that prevailed in the case against Suthers, hasn't said what form of activism the tribes will mount should Suthers officially surface as a Romney appointee. But his recent statement on the case makes it clear the tribe and its nationwide alliances would not likely stand by and do nothing:

"For centuries, the rights and privileges of American Indian tribes have been attacked and lessened by states and their paternalistic attitudes, who, while always assuring us they were acting in our best interests, forcibly removed us to isolated, desolate regions of the country," Gamble said. "Because of these and other paternalistic restrictions, we have proactively determined that our most productive course is to reject the attitudes driving such restrictions."

Implications for Romney and Suthers

The implications for Suthers, and for Romney in their political partnership, are huge, according to this recent report by McClatchy News:

"Since 1990, the Indian gaming industry has made political contributions of nearly $58 million, with 70 percent of the money going to Democrats, according to the Center for Responsive Politics. And the tribes also have been spending heavily on lobbying, more than $20 million in 2011 alone."

Suthers, it seems, may have lost more than taxpayer resources and a career-staining courtroom battle trying to regulate tribal operations: He may have lost his dream of becoming Attorney General in a Romney White House.

In a presidential race against any incumbent, how could Romney's team allow their man to become a known ally of anyone like Suthers, whose track record makes him the target of a professionally managed $58 million political machine?